Talking Points

A Soldier in the Drug War Switches Sides

Conservative Judge James Gray was on the bench for 25 years in Orange County. He was a federal prosecutor and a Navy JAG before that. He ran for Congress as a Republican in the late ’90s and as a Libertarian for Senate a few years later.

His home state of California could vote to regulate, control and tax marijuana in November, allowing cities to decide how to handle the legality of cannabis. And that's just fine by Gray.

Proposition 19 on California's ballot requires only a simple majority to pass. If a city opted in, people over 21 would be allowed to posses an ounce. They could smoke it at home or in a business licensed for pot consumption. They could grow it for personal use. Cities could also permit the retailing and tax of cannabis. It’s estimated that the taxes could bring in major money, hundreds of millions or even billions.

Gray once prosecuted drug offenders as a federal lawyer in Los Angeles. But after running his own courtroom as a judge, he changed his tune. On April 8, 1992, he held a news conference on the steps of the courthouse, a move he says was unusual for a sitting court trial judge. He told the media that the system wasn't working and suggested the government operate package stores to sell marijuana, cocaine and heroin to adults.

He's coming to New Mexico—one of 14 states to legalize medical marijuana—as part of a speaking tour for LEAP, or Law Enforcement Against Prohibition. In 2001, he authored a book called Why Our Drug Laws Have Failed and What We Can Do About It. The Alibi got a chance to speak with Gray about the flagging war on drugs.

You've worked as a federal prosecutor. What's your take on states legalizing marijuana for medical use while it remains illegal federally?

“It makes as much sense to put Robert Downey Jr. in jail for his heroin problem as it would to have jailed Betty Ford for her alcohol problem.”

Judge James Gray

I know, and almost everyone else does, too, that the federal government does not have the ability to prosecute volume cases. They have to be selective, which is good. They couldn't possibly enforce these laws against a person for possessing one marijuana cigarette or something. They're just not equipped to do it. The states have every right to change their laws and then to decline to prosecute federal laws. That's perfectly within the state's rights.

The answer to that is absolutely and unequivocally no. It makes as much sense to put Robert Downey Jr. in jail for his heroin problem as it would to have jailed Betty Ford for her alcohol problem. It's the same thing. It's a medical issue, so let the medical professionals address it.

Yes, I would rather people go into treatment than go into the criminal justice system, but honestly, I only want to bring the problem users into treatment at all.

We have Prop 36 in California that mandates treatment instead of incarceration. But most people that use marijuana—or any other drug actually—are not problem users. That's not to say it's a good thing, but as long as they're harming themselves and no one else, it's none of the government's business.

That seems to speak a little bit to your Libertarian positions. You've also been called a "conservative judge." Is that accurate?

Yes. I'm a conservative judge from conservative county. I honestly believe in responsibility, which I know is a rather surprising concept in today's world, but yes. You can talk to any attorney in my courtroom, and they would share that view, too, that I believe in having reasonable laws and I believe in enforcing those laws. As far as my courtroom was concerned, people knew that I would follow the rules, and so they wouldn't break them, and everybody got along really well.

You were once a self-described "drug warrior," prosecuting dealers and users. What changed and why?

I would look in my own courtroom and see that we were churning low-level drug offenders through the system for no good purpose, often numbers of times. We would arrest, charge, convict and incarcerate even big-time drug-sellers, and it wouldn't mean at all that those drugs were no longer available in Santa Ana or Costa Mesa or whatever other city. It just meant that somebody else saw that as an employment opportunity. Nobody is talking about this. It's clear that what we're doing is not working.

How does drug prosecution negatively affect other types of prosecution?

The tougher we get with regard to nonviolent drug offenses, the softer we get with regard to the prosecution of everything else. We only have so many resources in the criminal justice system, and when we're spending them on prosecuting nonviolent drug offenses, we literally are not spending them on prosecuting robbery, rape and murder.

You see Prop 19 coming down the pike in California. What's your prediction?

What time is it? Sometimes some polls say Prop 19 is ahead, I've seen it by as much as 10 points. Sometimes it's tied. I don't know. It's going to be close. I think everybody understands that. People are ahead of the politicians on this. You look back to 1996 with the medical marijuana, Prop 215; I can't think of a publicly elected official who was in favor of it, or in fact, who wasn't opposed to it. The police, the federal government. There are almost no politicians that are in favor of Prop 19. I think we have a pretty good chance, but it will be close.

Why are you in this fight?

I'm a former Peace Corps volunteer. I love my country, and honestly, the most patriotic thing I can do for my country is help us repeal drug prohibition, which is the largest failed social policy in the history of our country, second only to slavery. When we finally repeal drug prohibition, almost without exception, everybody around the country will put their arms around each other and look back astonished that we perpetuated such a failed system for so long. It's apparent. That's why we have to legitimize the discussion.